[Federal Register Volume 85, Number 54 (Thursday, March 19, 2020)]
[Rules and Regulations]
[Pages 15729-15733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05203]
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ENVIRONMENTAL PROTECTION AGENCY
40 CFR Part 49
[EPA-HQ-OAR-2014-0606; FRL-10006-52-OAR]
RIN 2060-AU45
Amendments to Federal Implementation Plan for Managing Air
Emissions From True Minor Sources in Indian Country in the Oil and
Natural Gas Production and Natural Gas Processing Segments of the Oil
and Natural Gas Sector
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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SUMMARY: The Environmental Protection Agency (EPA) amends the Federal
Implementation Plan (FIP) for Managing Air Emissions from True Minor
Sources in Indian Country in the Oil and Natural Gas Production and
Natural Gas Processing Segments of the Oil and Natural Gas Sector
(National O&NG FIP) and the Federal Minor New Source Review (NSR)
Program in Indian Country. This final rule allows for concurrent,
rather than sequential, submission of two sets of documents: the Part 1
Registration Form for source registration (Part 1 Form) and
documentation of completion of the screening procedures (screening
procedures documentation) for the evaluation of potential impacts of
proposed projects on threatened or endangered species and historic
properties (protected resources). The final rule also clarifies the 30-
day period before construction may begin, and the potential forms of
certain written notification by the EPA Regional Office to source
owner/operators. Finally, this final rule includes minor edits to
correct certain erroneous citations and cross references.
DATES: This final rule is effective on May 18, 2020.
ADDRESSES: The EPA has established a docket for this action, identified
by Docket ID No. EPA-HQ-OAR-2014-0606. All documents in the docket are
listed in the http://www.regulations.gov website. Although listed in
the index, some information is not publicly available, e.g.,
confidential business information (CBI) or other information whose
disclosure is restricted by statute. Certain other material, such as
copyrighted material, is not placed on the internet and will be
publicly available only in hard copy form. Publicly available docket
materials are available either electronically in the docket or in hard
copy at the EPA Docket Center Reading Room, WJC West Building, Room
3334, 1301 Constitution Avenue NW, Washington, DC 20004. The hours of
operation at the EPA Docket Center Reading Room are 8:30 a.m.-4:30
p.m., Monday-Friday. The telephone number for the EPA Docket Center is
(202) 566-1744.
FOR FURTHER INFORMATION CONTACT: For further information concerning
this action, please contact Ben Garwood, U.S. EPA, Office of Air
Quality Planning and Standards, Air Quality Policy Division, Mail Code
C504-03, 109 T.W. Alexander Drive, Research Triangle Park, NC 27709; by
telephone at (919) 541-1358 or by email at [email protected]. For
questions about the applicability of this action to a particular
source, please contact the appropriate EPA region:
EPA Region 5 (Illinois, Indiana, Michigan, Minnesota, Ohio
and Wisconsin)--Ms. Genevieve Damico, Air Permits Section,
Environmental Protection Agency, Region 5, Chicago, Illinois 60604;
telephone (312) 353-4761; fax (312) 385-5501; email address:
[email protected].
EPA Region 6 (Arkansas, Louisiana, New Mexico, Oklahoma
and Texas)--Ms. Bonnie Braganza, Air Permits Section, Multimedia
Permitting and Planning Division, Environmental Protection Agency
Region 6, Dallas, Texas 75202; telephone number (214) 665-7340; fax
number (214) 665-6762; email address: [email protected].
EPA Region 8 (Colorado, Montana, North Dakota, South
Dakota, Utah and Wyoming)--Ms. Claudia Smith, Air Program, Mail Code
8P-AR, Environmental Protection Agency Region 8, Denver, Colorado
80202; telephone number (303) 312-6520; fax number (303) 312-6520;
email address: [email protected].
EPA Region 9 (Arizona, California, Hawaii, Nevada and
Pacific Islands)--Ms. Lisa Beckham, Permits Office, Air Division, Air-
3, Environmental Protection Agency Region 9, San Francisco, California
94105; telephone number (415) 972-3811; fax number (415) 947-3579;
email address: [email protected].
All other EPA regions--For further information about minor
sources in Indian country for your EPA region, please use to the Tribal
New Source Review website at https://www.epa.gov/tribal-air. Scroll
down to the heading, ``Regulatory Resources,'' and click on ``Tribal
Minor New Source Review (NSR)'' and click on ``Tribal and Permitting
Programs in EPA's Regional Offices'' to access the links for tribal
programs in each EPA Regional Office.
SUPPLEMENTARY INFORMATION: Throughout this document wherever ``we,''
``us,'' or ``our'' is used, we mean the EPA.
Table of Contents
I. Background
II. Response to Comments
III. Environmental Justice Concerns
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and
Executive Order 13563: Improving Regulation and Regulatory Review
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
C. Paperwork Reduction Act (PRA)
D. Regulatory Flexibility Act (RFA)
E. Unfunded Mandates Reform Act (UMRA)
F. Executive Order 13132: Federalism
G. Executive Order 13175: Consultation and Coordination with
Indian Tribal Governments
H. Executive Order 13045: Protection of Children from
Environmental Health Risks and Safety Risks
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
J. National Technology Transfer and Advancement Act (NTTAA)
K. Executive Order 12898: Federal Actions to Address
Environmental Justice in Minority Populations and Low-Income
Populations
L. Congressional Review Act (CRA)
M. Judicial Review
I. Background
To authorize construction or modification of certain stationary
sources under the Federal Minor NSR Program in Indian Country,\1\ the
[[Page 15730]]
National O&NG FIP \2\ requires eligible sources to submit a two-part
registration form (see 40 CFR 49.160). The National O&NG FIP also has
requirements relating to protected resources, and, in certain
circumstances, requires sources to submit documentation of completion
of protected resources screening procedures (see 40 CFR 49.104). The
existing National O&NG FIP currently requires, in part, that the
screening procedures documentation be submitted (and the EPA's
confirmation of satisfactory completion of the protected resources
screening procedures be received) before the Part 1 Form may be
submitted (see 40 CFR 49.104(a)(2)). On July 15, 2019, the EPA proposed
to amend the National O&NG FIP to allow owners or operators of true
minor sources to concurrently submit to the EPA Regional Office the
Part 1 Form and the screening procedures documentation (see 84 FR
33715). The EPA did not propose to change the substantive requirements
for either the Part 1 Form or screening procedures documentation or the
requirement for EPA review of the screening procedures documentation.
In this final rule, the EPA is moving forward with the proposed
amendment without significant revision. The appropriate EPA Regional
Office will continue to assess whether the screening procedures have
been satisfactorily completed before construction or modification of
the proposed new and/or modified minor NSR source. This final rule also
expressly clarifies that, even though the Part 1 Form may be submitted
with the screening procedures documentation, construction may not begin
until at least 30 days has passed from the date the Part 1 Registration
Form was submitted, and the EPA Regional Office has provided written
notification of satisfactory completion of the screening procedures
documentation.
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\1\ 40 CFR 49.151-49.165.
\2\ 40 CFR 49.101-49.105.
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The EPA also proposed other minor changes, including the following:
Clarification that the EPA, under the National O&NG FIP, may provide
written notification relating to its evaluation of the screening
procedures documentation not just by mail, but also by email; and
clarification that the Federal Minor NSR Program in Indian Country only
requires that the Part 1 Form be submitted at least 30 days before
consruction begins, not exactly 30 days before construction begins. The
EPA also proposed correcting a typographical error in a citation in the
National O&NG FIP; changing certain references in the National O&NG FIP
from ``Reviewing Authority'' to ``EPA Regional Office;'' and making
minor edits, in the Federal Minor NSR Program in Indian Country, to
enhance clarity and readability of a provision relating to the Part 2
Registration Form. The EPA received no adverse comments concerning
these minor, clarifying or correcting changes and, in this final rule,
the EPA is finalizing those changes, substantially as proposed. The EPA
does not anticipate the final rule changes will result in any increase
in environmental impact(s) or cost increase(s) for the tribes,
reviewing authorities or the regulated community.
II. Response to Comments
A total of 20 comments \3\ were received on the proposed rule, two-
thirds (13) were generally supportive with some requests for
clarification. We received only one adverse comment expressing concern
that the EPA's proposed streamlining would reduce the time and
attention provided for the EPA review process. Some commenters
submitted concerns that were outside the scope of this rulemaking.
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\3\ Some comments are summarized and some brief responses are
provided, here, but for more complete responses to comments see the
Responses to Comments (RTC) in the docket for this rule. Refer to
the RTC for more information about the identity of the commenters
and comment summaries and response(s) not included in this
discussion. A total of 23 comments were received with 3 comments not
related to the current rulemaking; therefore 20 comments were
received related to this rulemaking.
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Comment: Nine commenters supported the rule as proposed noting that
streamlining the process for submitting the Part 1 Form and the
protected resources screening procedures documentation results in an
improvement by reducing unnecessary administrative delays, with no loss
of the EPA oversight in evaluating protected resources or of
environmental protection.
Response: We agree with the commenters that concurrent submission
of the Part 1 Form and documentation of protected resources screening
procedures may streamline the process for sources subject to the
National O&NG FIP. In addition, there have been no changes to the
environmental protections of the rule and, under the revised provisions
that allow concurrent submission, the EPA still must review and approve
the screening procedures documentation before construction or
modification can begin, all of which ensures that threatened or
endangered species, historic properties, and the environment will
continue to be protected as under the existing rule.
Comment: One commenter expressed concern about EPA's consultation
and coordination with Indian Tribal Governments as per EPA's Policy on
Consultation and Coordination with the Indian Tribes.\4\ The commenter
asserted that when the EPA Regional Office reviews the protected
resources screening documentation (whether generated by the owner/
operator or by another agency), as well as when the owner/operator
submits the Part 1 Form, the EPA Regional Office must consult and
coordinate with the affected Indian Tribe(s) whose resources may be
impacted by the source's operations. The commenter further recommended
that the EPA Regional Office notify the affected Indian Tribe(s)
immediately upon the EPA's receipt of the Part 1 Form or the screening
procedures documentation, noting that, because consultation and
coordination potentially can take significant time, the earlier the
notification, the better and that the affected Indian Tribe(s) have
governmental programs with substantial expertise regarding screening
documentation review and adequacy, such as a Historic Preservation
Officer and Departments of Cultural Resources, Fisheries, Wildlife,
Water, Air Quality, and Forestry. The commenter also stated that the
relevant EPA Regional Office must consult and coordinate with the
affected Indian Tribe(s) regarding the EPA Regional Office's review and
determination of adequacy of the protected resources screening
documentation.
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\4\ https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
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Response: The EPA proposed no changes to the EPA's rules, policies,
or practices concerning Tribal consultation or coordination, including
in connection with the National O&NG FIP. The issues raised by the
commenter were not the subject of the proposed amendments to the
National O&NG FIP and they are outside the scope of this rulemaking and
will not be addressed here. However, we note that the existing
regulations at 40 CFR 49.104(a)(1) and (2) require that sources submit
screening procedures documentation to the relevant tribe as well as to
the EPA Regional Office, and the proposed amendments do not change
these requirements.
Comment: One commenter opposed the proposed rule asserting that it
removes critical protections from oil and gas emissions and that the
EPA has not met its obligations to protect public health and welfare
and has not fulfilled its trust responsibilities to Indian tribes. The
commenter further stated that the EPA does not have an understanding of
the impacts of oil and gas development on native communities in Indian
[[Page 15731]]
country, noting the lack of air monitors for PM2.5,
PM10, and ozone within the tribal boundaries of the Ft.
Berthold Reservation. The commenter also said that increasing the pace
of review for oil and gas minor sources is not the answer to an
increase in development, and expressed significant concerns that the
proposal could lead to less stringent enforcement and implementation of
the Endangered Species Act (ESA), less protection of threatened or
endangered species, and disregard for protected cultural resources such
as historic properties. Further, the commenter asserted that the
proposed changes to the FIP would result in tying approval of the
protected resources screening procedures documentation to approval of
the Part 1 Form, reducing the time and attention provided to the review
of true minor source applications. The commenter also stated that any
automatic approval after a certain time period is not adequate
consideration of the threatened or endangered species of this land or
the cultural heritage and artifacts of native people. The commenter
commented that the proposal supported faster review of oil and gas
minor sources, which is unnecessary and part of a dangerous trend from
this Administration in removing critical protections from oil and gas
emissions, endangering the lives of native people living on
reservations.
Response: In general, the EPA appreciates the commenter's concerns
about air quality. The EPA does not agree that the limited amendments
proposed to the National O&NG FIP will have a significant adverse
effect, if any, on air quality. Although the EPA maintains that there
may be some administrative streamlining advantages associated with the
proposed amendments, the EPA does not agree that the amendments will
substantially increase the rate of oil and natural gas development or
production. The proposed amendments also do not reduce or remove
existing air quality protections associated with the National O&NG FIP.
As to the comments relating to minor source applications and the
EPA's review of such applications, sources covered by the National O&NG
FIP ordinarily are not required to submit site-specific permit
applications, but are required to register and comply with various
stated requirements and emissions standards. There is no application,
as such, for the EPA to review and the limited amendments here make no
change to this basic framework. With respect to the ESA/National
Historic Preservation Act (NHPA) screening procedures, the National
O&NG FIP continues to require review of the adequacy of the screening
procedures documentation. Both in the prior National O&NG FIP, and the
FIP as amended by this action, construction may not begin until the EPA
provides written notification of adequate completion of the screening
procedures.
III. Environmental Justice Considerations
This action revises existing rules to streamline the administrative
process for sources covered by the National O&NG FIP by allowing the
the Part 1 Form to be submitted to the EPA at the same time as the
screening procedures documentation. It does not remove any of the prior
rules' environmental or procedural protections. The EPA believes that
this final action will not have potential disproportionately high and
adverse human health or environmental effects on minority, low-income,
or indigenous populations.
IV. Statutory and Executive Order Reviews
A. Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was,
therefore, not submitted to the Office of Management and Budget (OMB)
for review.
B. Executive Order 13771: Reducing Regulations and Controlling
Regulatory Costs
This action is expected to be an Executive Order 13771 deregulatory
action. This rule is expected to provide meaningful burden reduction by
potentially reducing the waiting time before certain true minor new and
modified oil and natural gas sources can begin construction.
C. Paperwork Reduction Act (PRA)
This action does not impose any new information collection burden
under the PRA. OMB has previously approved the information collection
activities contained in the Federal Minor NSR Program in Indian country
rule and has assigned OMB control number 2060-0003.\5\ The National
O&NG FIP, which this action amends, provides a mechanism for
authorizing construction or modification of true minor sources in the
oil and natural gas production and natural gas processing segments of
the oil and natural gas sector in areas covered by the Federal Minor
NSR Program in Indian country to satisfy the requirements of that rule
other than by obtaining a site-specific minor source permit. Because it
substitutes for a site-specific permit, which would contain information
collection activities covered by the Information Collection Request for
Federal Minor NSR Program in Indian country rule issued in July 2011,
neither the amendments nor the National O&NG FIP impose any new
obligations or new enforceable duties on any state, local, or tribal
government or the private sector.
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\5\ Since the Federal Minor NSR Program in Indian country rule
was promulgated, the Information Collection Request (ICR) has been
renewed and approved by OMB twice. The most recent approval extended
the ICR until October 31, 2020. The ICR covers the activities of the
National O&NG FIP. For more information, go to: https://www.reginfo.gov/public/do/PRAViewICR?ref_nbr=201702-2060-005.
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D. Regulatory Flexibility Act (RFA)
I certify that this action will not have a significant economic
impact on a substantial number of small entities under the RFA. In
making this determination, the impact of concern is any significant
adverse economic impact on small entities. An agency may certify that a
rule will not have a significant economic impact on a substantial
number of small entities if the rule relieves regulatory burden, has no
net burden or otherwise has a positive economic effect on the small
entities subject to the rule. This action merely modifies the timing to
allow required documentation to be submitted at an earlier point in the
regulatory process. The EPA analyzed the impact on small entities of
streamlined permitting resulting from this rule and determined that it
would not have a significant economic impact on a substantial number of
small entities. We have therefore concluded that this action will have
no net regulatory burden for all directly regulated small entities.
E. Unfunded Mandates Reform Act (UMRA)
This action does not contain any unfunded mandates, as described in
UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect
small governments. The action imposes no enforceable duty on any state,
local, or tribal government or the private sector. In material part, it
simply modifies the permissible time-frame for submission of otherwise
required forms to streamline the National O&NG FIP and Federal Minor
NSR Program in Indian country.
F. Executive Order 13132: Federalism
This action does not have federalism implications. It would not
have substantial direct effects on the states, on the relationship
between the
[[Page 15732]]
National Government and the states, or on the distribution of power and
responsibilities among the various levels of government.
G. Executive Order 13175: Consultation and Coordination With Indian
Tribal Governments
This action may have tribal implications. However, it will neither
impose substantial direct compliance costs on federally recognized
tribal governments, nor preempt tribal law. Consistent with the EPA
Policy on Consultation and Coordination with Indian Tribes (May 4,
2011),\6\ the EPA offered consultation on the proposed action. The EPA
conducted outreach on issues related to the Federal Minor NSR Program
in Indian country and the National O&NG FIP via ongoing monthly
meetings with tribal environmental professionals.\7\ We did not receive
a formal tribal consultation request for this rulemaking.
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\6\ For more information, go to: https://www.epa.gov/tribal/epa-policy-consultation-and-coordination-indian-tribes.
\7\ These monthly meetings are general in nature, dealing with
many air-related topics, and are not specific to this final action.
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H. Executive Order 13045: Protection of Children From Environmental
Health Risks and Safety Risks
This action is not subject to Executive Order 13045 because it is
not economically significant as defined in Executive Order 12866, and
because the EPA does not believe the environmental health or safety
risks addressed by this action present a disproportionate risk to
children.
I. Executive Order 13211: Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution or Use
This action is not subject to Executive Order 13211, because it is
not a significant regulatory action under Executive Order 12866.
J. National Technology Transfer and Advancement Act (NTTAA)
This action does not involve technical standards.
K. Executive Order 12898: Federal Actions To Address Environmental
Justice in Minority Populations and Low-Income Populations
The EPA believes this action does not have potential
disproportionately high and adverse human health or environmental
effects on minority, low-income or indigenous populations. Through this
amendment, we seek to further streamline the process for true minor
sources in the oil and natural gas sector in areas covered by the
Federal Minor NSR Program in Indian country. This action does not
remove any of the prior rules' environmental or procedural protections.
L. Congressional Review Act (CRA)
This rule is exempt from the CRA because it is a rule of agency
organization, procedure or practice that does not substantially affect
the rights or obligations of non-agency parties.
M. Judicial Review
Under section 307(b)(1) of the CAA, petitions for review of this
final action must be filed in the U.S. Court of Appeals for the
appropriate circuit within 60 days from the date this final action is
published in the Federal Register.
List of Subjects in 40 CFR Part 49
Environmental protection, Administrative practices and procedures,
Air pollution control, Indians, Indians--law, Indians--tribal
government, Intergovernmental relations, Reporting and recordkeeping
requirements.
Dated: March 6, 2020.
Andrew R. Wheeler,
Administrator.
For the reasons set forth in the preamble, 40 CFR part 49 is to be
amended as follows:
PART 49--INDIAN COUNTRY: AIR QUALITY PLANNING AND MANAGEMENT
0
1. The authority citation for part 49 continues to read as follows:
Authority: 42 U.S.C. 7401, et seq.
Subpart C--General Federal Implementation Plan Provisions
0
2. In Sec. 49.104, revise paragraphs (a) introductory text, (a)(2)
introductory text, (a)(2)(i) introductory text, (a)(2)(i)(B), and
(a)(2)(ii) to read as follows:
Sec. 49.104 Requirements regarding threatened or endangered species
and historic properties.
(a) What are sources required to do to address threatened or
endangered species and historic properties? An owner/operator subject
to the requirements contained in Sec. Sec. 49.101 through 49.105 to
satisfy its obligation under Sec. 49.151(c)(1)(iii)(B) to obtain a
minor NSR permit shall meet either paragraph (a)(1) or (2) of this
section, as appropriate.
* * * * *
(2) Screening procedures completed by the owner/operator. The
owner/operator shall submit to the EPA Regional Office (and to the
relevant tribe for the area where the source is located/locating)
documentation demonstrating that it has completed the required
screening procedures specified for consideration of threatened or
endangered species and historic properties and receive written
confirmation from the EPA stating that the owner/operator has
satisfactorily completed these procedures. The completed screening
procedures documentation may be submitted together with the source's
required Sec. 49.160(c)(1)(iv) Part 1 Registration Form. (The
procedures are contained in the following document: ``Procedures to
Address Threatened and Endangered Species and Historic Properties for
the Federal Implementation Plan for Managing Air Emissions from True
Minor Sources in Indian Country in the Oil and Natural Gas Production
and Natural Gas Processing Segments of the Oil and Natural Gas
Sector,'' https://www.epa.gov/tribal-air/tribal-minor-new-source-review). Review of your submittal will be conducted by the EPA Regional
Office in accordance with the procedure in paragraphs (a)(2)(i) and
(ii) of this section:
(i) Within 30 days of receipt of your documentation, by written
notification to you, the EPA Regional Office must provide one of the
following determinations:
* * * * *
(B) The documentation is not adequate, and additional information
is needed. If the initial submittal is deficient, the EPA Regional
Office will note any such deficiencies and may offer further direction
on completing the screening procedures. Once you have addressed the
noted deficiencies, you must resubmit your revised screening procedure
documentation for review. An additional 15-day review notification
period will be used for the EPA Regional Office to determine whether
the listed species and/or historic property screening procedures have
been satisfied. If the EPA Regional Office makes such a determination,
it will send you written notification stating that conclusion.
(ii) You must obtain written notification from the EPA Regional
Office indicating that the source has adequately completed the
screening procedures. The EPA Regional Office may send written
notification by mail, email, or any other written means of
notification. You may not begin
[[Page 15733]]
construction under this FIP until the following two conditions are met:
(A) At least 30 days has passed from the date the Part 1
Registration Form was submitted; and
(B) The EPA Regional Office has provided this notification.
* * * * *
0
3. In Sec. 49.160, revise paragraph (c)(1)(iv) to read as follows:
Sec. 49.160 Registration program for minor sources in Indian country.
* * * * *
(c) * * *
(1) * * *
(iv) Minor sources complying with Sec. Sec. 49.101 through 49.105
for the oil and natural gas production and natural gas processing
segments of the oil and natural gas sector, as defined in Sec. 49.102,
must submit, at least 30 days prior to beginning construction, the Part
1 Registration Form containing the information in paragraph (c)(2) of
this section. The Part 2 Registration Form, including emissions
information, must be submitted within 60 days after the startup of
production as defined in Sec. 49.152(d). The source must determine the
potential for emissions within 30 days after startup of production.
The combination of the Part 1 and Part 2 Registration Forms
submittals satisfies the requirements in paragraph (c)(2) of this
section. These forms are submitted to the EPA instead of the
application form required in paragraph (c)(1)(iii) of this section. The
forms are available at: https://www.epa.gov/tribal-air/tribal-minor-new-source-review or from the EPA Regional Offices.
* * * * *
[FR Doc. 2020-05203 Filed 3-18-20; 8:45 am]
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